As regular readers likely know, GAB has featured a number of commentaries over the past few years on the proposal to create an International Anti-Corruption Court (IACC), modeled on the International Criminal Court, to try senior figures for grand corruption when their domestic justice systems prove unwilling or unable to do so (see here, here, here, here, and here). The idea has attracted a great deal of interest, as well as both support and criticism. To provide a basic overview of the debate so far, a few months ago the U4 Anti-Corruption Resource Center Centre’s Sofie Schütte and I published a short U4 paper entitled “An International Anticorruption Court? A Synopsis of the Debate.”(The brief is also available in French and Spanish.) For those out there who are new to this topic, this U4 Brief is meant to provide some general background information and a succinct summary of (1) the strongest arguments in favor of creating an IACC, (2) the strongest criticisms of the IACC proposal, and (3) an overview of some other approaches to the grand corruption and impunity problems. Hope it’s helpful!
As many GAB readers are aware, Judge Mark Wolf’s vigorous advocacy for the creation of an International Anti-Corruption Court (IACC), modeled on but distinct from the International Criminal Court, has prompted a great deal of commentary and discussion on this blog (see, for example, here, here, here, here, and here), and elsewhere.
Last month Judge Wolf and I had the opportunity to sit down with Alexandra Wrage, the President of TRACE International, to discuss the IACC proposal on an episode of TRACE’s “Bribe, Swindle, or Steal” podcast. The direct link to the podcast is here. You can also find the link on the TRACE podcast main page, which also includes links to a number of past podcasts on anticorruption-related topics, which might also be of interest to GAB readers.
Last week, Richard Goldstone and Robert Rotberg posted a response to Professor Alex Whiting’s critique of the proposal to create an International Anti-Corruption Court (IACC). Early in their response, Goldstone and Rotberg–both advocates for an IACC–remarked, a bit snarkily, that “[n]otably absent from [Professor Whiting’s] post is a description of what the other effective responses to combating grand corruption might be.”
That struck me as a bit of a cheap shot. Professor Whiting’s post offered a careful, thoughtful argument based on his experience and knowledge of the International Criminal Court (ICC) and similar tribunals, and not every such critical commentary on a given proposal must include a full-blown discussion of alternatives. Still, Goldstone and Rotberg’s implicit challenge to IACC skeptics to articulate alternative responses to grand corruption is worth taking seriously, for two reasons:
- First, this seems to be a common rhetorical gambit by advocates for an IACC, or for other radical measures that critics deem impractical: Rather than answering and attempting to refute the critics’ specific objections directly, the move is to say, “Well, but this is a huge problem, and there’s no other way to solve it, so poking holes in this proposal is really just an excuse for inaction. This may seem like a long shot, but it’s the only option on the table.”
- Second, and more charitably to those who make this point, grand corruption is indeed an enormous problem that needs to be addressed. And so even though not every critical commentary on a particular proposal needs to include a full-blown discussion of alternatives, those of us who (like me) are skeptical of deus-ex-machina-style responses to the grand corruption problem ought to make a more concerted effort to lay out an alternative vision for what can be done.
In this post I want to (briefly and incompletely) take up the implicit challenge posed by Goldstone and Rotbert (and, in other writings, by other IACC proponents). If the international community is serious about fighting corruption, what else could it do, besides creating a new international court and compelling all countries to join it and submit to its jurisdiction? When people like Professor Whiting (and I) suggest that lavishing time and attention on the IACC proposal might be a distraction from other, more effective approaches, what do we have in mind? What else could international civil society mobilize behind, besides something like an IACC, to address the problem of grand corruption?
Here are a few items on that agenda: Continue reading
Today’s guest post is from Richard Goldstone, a former Justice of the Constitutional Court of South Africa who also served as the first chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, and Robert Rotberg, the President Emeritus of the World Peace Foundation and former professor at the Harvard Kennedy School of Government.
In a 2018 Daedalus article, Senior United States District Judge Mark L. Wolf explained that “The World Needs an International Anticorruption Court (IACC)” and charted a course for its creation. In a recent post on this blog, Professor Alex Whiting characterized the IACC as a “utopian” dream and possibly “a distraction from more effective responses to the worldwide scourge of grand corruption.” Notably absent from the post is a description of what the other effective responses to combating grand corruption might be.
My Harvard Law School colleague Professor Alex Whiting, who previously served in the Office of the Prosecutor at the International Criminal Court, as a Senior Trial Attorney at the International Criminal Tribunal for the Former Yugoslavia, and as a US federal prosecutor, contributes today’s guest post:
Since 2014, US Judge Mark Wolf has been vigorously advocating the creation of an International Anti-Corruption Court (IACC), modeled on the International Criminal Court (ICC), to combat grand corruption around the world. Some, including writers on this blog, have expressed skepticism, and have criticized Judge Wolf and other IACC supporters for not offering sufficient detail on how an IACC would work or how, as a political matter, it could be created. This past summer, in an article published in Daedalus, Judge Wolf laid out a more detailed case for the IACC. He again invoked the ICC as the model—both for how such a court could be created and how it would operate.
It is an enticing vision, to be sure: international prosecutors swooping in to collar high-level corrupt actors, further spurring on national leaders to clean up their own houses. It’s all the more enticing given that, as Judge Wolf persuasively argues, national governments have failed to adequately address grand corruption in their own jurisdictions, with significant adverse consequences for international security and prosperity. But the ICC experience suggests the limits rather than the promise of an IACC. Indeed, the ICC’s history demonstrates why it is so hard to see a feasible political path forward to creating an IACC. More fundamentally, an IACC would require a radical re-conceptualization of the ICC model, one that states have never shown a willingness to embrace. Continue reading
GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:
Over the past two months, the French Tribunal de Grande Instance in Paris (the principal trial court) heard evidence in the case against Teodoro Nguema Obiang Mangue (known as Teodorin), on charges of corruption and money laundering, among other allegations. Teodorin is the son of Teodoro Obiang Nguema Mbasogo, the long-time – and notoriously corrupt – President of Equatorial Guinea, a resource-rich country that also has some of the most widespread poverty in the world. Yet Teodorin, who is currently Vice President , owns vast real estate in Paris, a private jet, a yacht, and a fleet of vintage and modern automobiles, among his other known assets. This case has been discussed extensively on this blog (see here, here, here, here, here, here, here, and here), but it’s useful to recap how the case came to trial in the first place:
The case against Teodorin was primarily the result of diligent efforts by NGOs, including the French anticorruption group Sherpa and the French chapter of Transparency International (TI). In 2007, Sherpa and others filed a complaint with the Public Prosecutor in Paris alleging that the ruling families of Equatorial Guinea, Angola, Burkina Faso and the Republic of the Congo held assets in France that were not the fruits of their official salaries. After a brief investigation, the Public Prosecutor dismissed the claims. Several of the NGOs, joined in some instances by citizens of the countries in question, then used a French procedure known as constitution de partie civile to cause a criminal investigation by an investigating magistrate (juge d’instruction). This effort was opposed by the Public Prosecutor. A Court of Appeals initially upheld the prosecutor’s position and dismissed TI’s intervention, but in an important 2010 ruling, the French Cour de Cassation (Supreme Court) ruled that TI was a proper partie civile authorized to instigate the criminal investigation. Ultimately Teodorin was bound over for trial, now with the support of the Public Prosecutor (as well as the continued active participation of TI and other NGOs). A decision is expected in October.
The procedures that brought Obiang to trial are interesting because they highlight four important differences between French and US criminal procedures, and more generally illustrate several legal deficiencies, in countries like the United States, that often hinder the worldwide fight against transnational corruption: Continue reading
In an earlier post, I discussed an order by the Inter-American Court of Human Rights demanding that Brazil investigate and report on prison guards’ corruption. Mandating that a country review its own corruption seems to be a new step for an international judicial body. The approach suggests a way to more closely integrate corruption-related concerns into international human rights work: including corruption-specific mandates within broader holdings. Other international adjudicative bodies, particularly regional human rights courts, should follow this model.
The idea of directly adjudicating corruption through an international court has been floated but also strongly opposed. Some corruption commentators advocate making grand corruption a crime against humanity that could be prosecuted by the International Criminal Court (ICC). As discussed on this blog, Judge Mark Wolf has proposed an independent international anticorruption court, an idea that met with some tempered support and a good deal of opposition (see here, here, and Matthew’s concerns here). I agree that grand corruption does not belong in the ICC or an independent court. To reject grand corruption as a stand-alone offense to be prosecuted in international criminal tribunals is not, however, to reject that corruption should be addressed by international criminal tribunals where it is relevant. Existing bodies like regional human rights courts—the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the much newer African Court on Human and Peoples’ Rights, as well as other, even younger human rights bodies in Southeast Asia and the Middle East—should explicitly address corruption-related issues within the context of the large volume of human rights adjudication already taking place. As other commentators have already discussed, these regional human rights courts can fold corruption into their respective mandates and generate meaningful corruption-related law (see here, here, and here). Indeed, regional human rights bodies are already well-placed to highlight corruption where it emerges and to respond appropriately to both the existing situation and future concerns:
Over the last year or so, proposals for an International Anti-Corruption Court (IACC), modeled on (but distinct from) the International Criminal Court (ICC), have attracted an increasing amount of attention in the anticorruption community and beyond. This attention is due in part to the understandable frustration with the continued impunity of many kleptocrats, and in part to the instinctive attraction (in some quarters) to international judicial solutions to political problems. It’s also the result of the dogged and determined advocacy of IACC proponents. As some readers of this blog probably know, I’m skeptical. But I nonetheless admire the IACC advocates for their willingness to think creatively and to spark an important debate.
That admiration, however, is waning, and the reason is simple: For all their talk about wanting to start a conversation, IACC advocates have shown surprisingly little interest in engaging, in any serious way, with substantive objections to the proposal. It’s now over 18 months since the campaign for an IACC began. Very early on, sympathetic but skeptical critics—including me, as well as several others (see here and here)—raised a number of serious questions and concerns. These concerns are not minor details about implementation—they go to the heart of the proposal, and if the criticisms are on the mark, then the whole enterprise is misguided. Now, maybe the criticisms are not well-founded; maybe there are good answers to all of them. Yet so far IACC advocates have not really provided those answers. (To be fair, the main pro-IACC webpage includes an FAQ section that purports to offer some preliminary responses, but to call those responses “thin” would be generous.) When pressed, IACC advocates have a tendency to respond with one or both of the following rejoinders: (1) “Corruption is really bad—don’t you want to stop it?”; (2) “The critics have raised a number of concerns that will need to be addressed when we work out the details of the proposal.” But nobody in this debate seriously disputes the harms of corruption, and the criticisms that have been raised are not about minor details. At this point, if IACC advocates are serious, they need to offer more than that, and what’s to be found on the brief FAQ page.
Just to recap the main objections: Continue reading
In the United States, the federal government plays a lead role in prosecuting corruption at the state and local level–and many anticorruption advocates and scholars (both in the US and internationally) credit this federalization of anticorruption enforcement with getting rampant local corruption under control. Indeed, the DOJ’s Public Integrity Section was founded in 1976 precisely because it was thought that federal enforcement efforts were required to fill the vacuum created by the inability or unwillingness of state and local law enforcement authorities to bring cases against government officials in their own communities.
Leaving aside for the moment the substantial federalism and sovereignty concerns that have been leveled against this approach, it seems that the federalization of state and local corruption prosecutions worked, and contributed to a significant reduction in corruption across the United States. For this reason, anticorruption advocates frequently suggest that the US experience with federal enforcement should serve as a model for the international community. For example, Judge Mark Wolf’s proposal for an International Anticorruption Court explicitly draws on the US approach, and was likely influenced by Judge Wolf’s personal experience as a federal prosecutor of state and local officials.
I would like to propose the reverse: The United States should take a page out of the international enforcement playbook to improve state-level prosecution of state and local corruption, by implementing something like the OECD Anti-Bribery Convention’s closed-door meetings of law enforcement officials, but for US state-level prosecutors. Here’s why: Continue reading
As readers of this blog know, U.S. Federal District Judge Mark Wolf has been vigorously advocating for the creation of a new International Anticorruption Court (IACC), modeled on the International Criminal Court (ICC), that would have jurisdiction over grand corruption committed by senior national leaders and their associates. His proposal has attracted a great deal of attention, including a critique that I posted a little while back. The proposal also relates to more general questions about the appropriate role for international law and institutions in fighting grand corruption.
Last week, the Harvard Law and International Development Society (LIDS) organized a fantastic symposium on “Combating Grand Corruption: Is International Law the Answer” to tackle some of these issues. Judge Wolf and Luis Moreno Ocampo, who served as the first prosecutor at the ICC, gave opening and closing remarks.
Fortunately the conference was recorded; here are the links to Part One and Part Two. The whole thing is worth watching, but for those of you who are particularly interested in seeing Judge Wolf and I square off in person, his opening remarks in support of the IACC proposal can be found from 4:26-24:43 of Part One, my critique is at Part One, 1:32:20-1:45:52, and his closing remarks (which include but are not limited to a rebuttal of my critique) are at Part Two, 1:11:14-1:30:12.
Other highlights include:
- Mr. Moreno Ocampo’s opening and closing remarks (Part One, 25:03-42:37 and Part Two, 1:06:18-1:11:06)
- Akaash Maharaj, Executive Director of the Global Organization of Parliamentarians Against Corruption, on the range of possible international legal responses to grand corruption (Part One, 1:17:00-1:32:07)
- My Harvard Law School colleague Alex Whiting, former Prosecutions Coordinator at the ICC, on what we can learn from the ICC experience for the proposed IACC (Part One, 1:46:00-1:58-40)
- Charles Duross, former head of the FCPA Unit at the U.S. Department of Justice, on how the FCPA helps combat grand corruption and what we could do to make it more effective in doing so (Part Two, 3:33-18:17)
- GAB’s very own Rick Messick on more practical, achievable measures that could make a difference in reducing grand corruption (Part Two, 18:35-29:39)
- Robert Leventhal, Director of Anticorruption Programs and Governance Initiatives at the U.S. State Department, on measures that the U.S. government is undertaking that make it harder than ever to be a kleptocrat (Part Two, 29:47-42:40)